A bargaining chip?

Those applauding introduction of plea bargaining are pointing towards US as confirmation of its usefulness in disposing cases speedily.

Those applauding the introduction of plea bargaining in India have been pointing towards the US as confirmation of its usefulness in disposing of cases speedily. In America, plea bargaining has come to dominate the judicial system, with, according to one source, less than 10 per cent of cases actually coming before a jury for trial. Without doubt, the huge backlog of cases in India needs urgent attention. Justice also needs to be done to the undertrials crowding our already bursting jails. Yet, there is a need to pause and gauge whether bartering justice is the best way of clearing the Augean Stables of our inefficient judicial system.

HT Image

Plea bargaining works under the assumption that all other constitutional safeguards provided to both the victim and the accused have not been breached. This would be difficult to assess in a country where corruption is rampant and the legal machinery is easily manipulated. Victims, witnesses and their families are regularly harassed, threatened or coerced into dropping charges or changing statements. It’s difficult to imagine that things will be different when an accused, especially from a rich and influential background, appeals for a lesser sentence. On the other side of the fence are the suspects in police custody. With the police already under the scanner for obtaining ‘confessions’ through extraconstitutional means, one can’t rule out the use of pressure for the purpose of closing case files and collecting brownie points.

But plea bargaining will undoubtfully come as an attractive option for many undertrials — and not only because of the possibility of getting a lesser punishment. With a large number of undertrials spending years in jail due to the slow pace of trial, sometimes without ever facing a magistrate, a confession in the course of a plea bargain is likely to be their best chance of freedom. But isn’t that pressure to waive their right to a fair trial? By beginning to function under the belief that some justice is better than no justice, we may have acknowledged defeat rather than ushered reform.